Smith v. Robinson
Fayette Circuit Court
Error to the Court of Common Pleas of Fayette county. A reversal of the judgment of the court of common pleas is sought upon the ground that that court erred in rendering final judgment against Smith upon a general demurrer to his petition.
Read the full summary
Error to the Court of Common Pleas of Fayette county. A reversal of the judgment of the court of common pleas is sought upon the ground that that court erred in rendering final judgment against Smith upon a general demurrer to his petition. The substance of the petition is as follows: .On the 20th day of April, 1877, Smith was sheriff of Fayette county, holding an execution for $1,730.00, issued at the instance of one John Leaverton, upon a judgment which he had recovered against one William Snyder. On that dav he returned the writ with the following endorsement: “Received this writ April 20,…
1Opinion of the CourtShauck, J.
The promise of Robinson to indemnify the sheriff against all demands of the execution creditor was original, and made solely for his own benefit. It was not collateral to the engagement of any third person. It was not, therefore, within the statute of frauds. Mays v. Joseph, 34 O. S., 22.
Is the promise void as being against public policy? It is clear that the sheriff did not pursue the mode pointed out by the statute (sec. 5444) to determine the rights of a third person claiming chattels which he had taken in execution. Nor, in view of his failure in that regard and his voluntary surrender of…
2Cases cited2 opinions
- Burrall v. AckerCourt for the Trial of Impeachments and Correction of Errors · 1840
- Forniquet v. TegardenCourt of Appeals of Mississippi · 1852